Nanjundappa vs State Of Karnataka

Nanjundappa & Anr. … Appellants

Vs.

The State of Karnataka …Respondent

JUDGMENT

KRISHNA MURARI, J.

1. This Appeal challenges the judgment and Order

dated 07.02.2017 passed by the High Court of Karnataka

at Bengaluru in Criminal Revision Petition No.

1048/2010 dismissing the Petition filed by the appellants

herein. The High Court confirmed the Judgment and

Order of the Trial Court and the First Appellate Court

Signature Not Verified convicting the Appellants under Section 304(A) read with Digitally signed by Anita Malhotra Date: 2022.05.17 16:52:13 IST Reason: Section 34 of the Indian Penal Code (for short ‘IPC’) and

1 sentencing them to undergo Simple Imprisonment for 1

year and 3 months and penalty of Rs. 3000/­ each with

default stipulation of Simple Imprisonment for 3 months.

2. Facts shorn of unnecessary details as unfolded by

prosecution are as under:

On 21.11.2003 at around 1.00p.m. Sri Uday Shankar

S/o PW2 was watching TV in his house at Molakalmuru

Town, New Police Quarter No. 13, when there was a

sudden sound in the TV. Noticing the sound, the

deceased got up to separate the dish wire, the TV

connection wire and the telephone wire, which were

entwined together. At this point, he felt an electric shock

and his right hand was burnt and as a result of this

shock he succumbed to death. Upon enquiry, during the

course of investigation, it was found that Appellant No. 2,

who was a daily wage worker working under the

supervision of Appellant no. 1, an employee in the

telephone department, had, while working on the DP

2 Pole, pulled the telephone wire. The telephone wire got

detached and fell on the 11 KV Power line and electricity

passed into the telephone wire. At this time, there was a

sound in the TV at PW2’s house and as the deceased

went to separate the telephone wire and cable wire, there

was a short circuit and thereby, the right hand of the

deceased was burnt and he died because of electrocution.

It is further alleged that the said incident took place

because of the negligent act on the part of

Appellant/accused No. 1 and Appellant/accused No. 2.

3. The conviction of the Appellants/Accused rests on

circumstantial evidence and the circumstances

highlighted were as follows:

(1) PW1/doctor’s report suggesting that death was due to instantaneous cardiac arrest and paralysis of the brain stem secondary to shock.

(2) Deposition of PW9,10,16, who were Police Staff residing in the Delhi police quarters,

3 stating that they also touched the telephones in their respective houses and felt the presence of electricity and immediately threw away the telephone instruments.

(3) Evidence of PW1/doctor, who stated that on the same day he had examined Appellant/Accused no. 2 for injuries as he had sustained a fall from the pole and an out­ patient slip was also issued to him.

(4) Evidence of the Prosecution witnesses that the deceased upon hearing noise from the television set first switched off the main electricity switch and then tried to separate the wires. However, there was still current in the wires.

(5) Evidence of PW15, who was a higher officer in the Department of Telephone stating that Appellant/accused no.1 and Appellant/ accused no. 2 were on duty and working on that day.

4. The defence taken by the Appellants/accused is

that on the day of the incident, they had not attended

4 any telephone wire repair at the place of the incident and

death of the deceased was not due to their carelessness

and negligence. While the Appellants/accused have not

denied the post­mortem report which attributes the

death to instantaneous cardiac arrest and paralysis of

the brain stem secondary to shock, the source of the

shock is implied to be the television set and not the

Telephone connection.

5. After giving our careful consideration to the

respective submissions made by the learned Counsel for

the parties and considering the facts and circumstances

of the case and evidences on record even if we take that

the Appellants/accused were in fact working on the DP

pole on the day of the incident, we find it difficult to

believe that with the alleged 11KV current running

through Telephone wire, the wires did not melt; rather

with the alleged volts of current passing through the

telephone instruments PW9,10,16 were able to throw the

5 telephone instruments away upon contact and lived to

tell the tale unharmed. Even assuming that the deceased

and the Prosecution witnesses who received the shock

were wearing slippers at the time of contact causing

resistance in the current, 11KV is still too strong and any

contact with such a high voltage current in all probability

should have left any person who came in contact dead

and his/her body charred. For reference standard

domestic voltage in India is only around 220V. Hitherto,

the evidence by PW9,10 & 16 is hearsay and

circumstantial and not worthy of any credence.

6. Now referring to PW1­Doctor’s evidence; he deposed

that Appellant no. 2 had visited him on the same day of

the incident and had suffered abrasion injuries on his

four fingers of both hands i.e., excluding the thumbs and

abrasions on both thighs. The record shows that the

deceased had also suffered abrasion injury along with

burn injuries. PW1 deposed in Examination­in­chief in

6 clear words that “the blood vessels of right thumb finger

and ring finger were burnt and wounds were shrinking.”

In light of these facts the lower court came to the

conclusion that Appellant no. 2 also suffered abrasion

injuries due to electric shock just as the deceased. This

conclusion however does not inspire confidence in our

eyes bearing in mind that if Appellant no.2 had infact

suffered an electric shock coming in contact with 11KV

high tension line and sustained a fall from the pole he

would have suffered burn injuries too such as the

deceased and such a shock along with the fall could

potentially be fatal. However, the record only shows

abrasions on 4 fingers and thighs.

7. We also find difficult to see reason in the

submission that telephone wires were able to carry

current from an 11KV high tension line and did not

immediately melt. It is even more difficult to assimilate

that such current when passed through the television,

7 did not blast the television set and set the entire wiring of

the house on fire. Be that as it may, the allegations

against the Appellants are highly technical in nature and

we find that no report or even inspection was conducted

by a technical expert to assess the veracity of the

averments made by the complainants to suggest that it

was due to the alleged acts of the Appellants that the

incident took place.

8. Even the evidence of PW15 is circumstantial in

nature, who stated that as per the job sheet, the

Appellants were working at the Police quarters; however,

there is no eye witness to say conclusively that the

Appellants were infact executing the work at the place

alleged.

9. Here it would be useful to advert to the dictum in

the case of Syad Akbar Vs. State of Karnataka1 in

1 MANU/SC/0275/1979; 1979CriLJ1374

8 which this Court proceeded on the basis that doctrine of

res ipsa loquitur stricto sensu would not apply to a

criminal case as its applicability in an action for injury by

negligence is well known. In Syad Akbar (supra), this

Court opined:

“29. Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are:

Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established.

Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt.”

10. In case of circumstantial evidence, there is a risk of

jumping to conclusions in haste. While evaluating such

9 evidence the jury should bear in mind that inference of guilt

should be the only reasonable inference from the facts. In the

present case however, the conviction of the accused persons

seems wholly unjustified against the weight of the evidence

adduced. As far as the onus of proving the ingredients of an

offence is concerned, in the judgment titled as "S.L.Goswami

Vs. State of M.P2" this Court held:­

"5 ..... In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution........................…"

2 1972 CRI.L.J.511(SC)

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11. Bearing in mind the above principles which have been

laid down in the decisions of this Court, we are of the view

that the Courts below were not justified in convicting the

Appellants of negligence under Section 304A read with Section

34 IPC.

12. For bringing home the guilt of the accused, prosecution

has to firstly prove negligence and then establish direct nexus

between negligence of the accused and the death of the victim.

Perusal of the record reveals that out of various witnesses

arrayed by the prosecution, there are no eye witnesses. Any

evidence brought on record is merely circumstantial in nature.

We are constrained to repeat our observation that it sounds

completely preposterous that a telephone wire carried 11KV

current without melting on contact and when such current

passed through the Television set, it did not blast and melt the

wiring of the entire house. It is even more unbelievable that

Appellant no. 2 came in contact with the same voltage and

managed to get away with a few abrasions. The Appellants

11 therefore are entitled to be given the benefit of doubt; more so,

when there is no report of a technical expert to corroborate the

prosecution story.

13. Accordingly, impugned judgment of conviction and

sentence of the appellants is set aside. The Appellants are on

bail. They shall be discharged of their bail bonds.

14. As a consequence, the appeal stands allowed.

………………………….CJI.

(N.V. RAMANA)

….…………………………J. (KRISHNA MURARI)

..………………………….J. (HIMA KOHLI)

NEW DELHI;

MAY 17, 2022

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